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Less than 100 days from the January 15 Iowa Caucus, former President Donald Trump still holds a dominant position in the polls, well ahead of all Republican rivals for the Republican nomination. The consensus narrative has Trump -- despite several criminal indictments -- easily winning the nomination and facing off against President Biden next fall. Not so fast. Although President Trump could theoretically serve as president even if he's serving time, he must still satisfy the minimum constitutional requirements to assume the Presidency. The Constitution demands that the president be at least 35 years of age, a natural-born citizen, and . . . not have engaged in insurrection or rebellion against the Constitution he previously swore to "preserve, protect and defend." Section 3 of the Fourteenth Amendment imposes the potential insurrection check on Donald Trump's eligibility to again serve as president. “No person shall . . . hold any office, civil or military, under the United States, . . . who, having previously taken an oath . . . as an officer of the United States, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” If President Trump is determined to be disqualified based on the Fourteenth Amendment, his disqualification could only be lifted if a supermajority of both the House and Senate vote to reinstate his eligibility. Under Section 3 of the Fourteenth Amendment, "Congress may by a vote of two-thirds of each House, remove such disability." The Fourteenth Amendment disqualification threat is not frivolous and serious judicial review of the disqualification question is about to commence. Upcoming State Court Case: On November 2, about three weeks from now, the Minnesota Supreme Court will hear oral arguments in a Fourteenth Amendment challenge to Trump's candidacy. The petitioners are registered Minnesota voters, including a former State Supreme Court Justice, former Minnesota Secretary of State and a current Hennepin County election judge. The case is on a fast track as the deadline to print the ballot for the March 5 Minnesota primary is fast approaching. The relevant statute authorizing challenges to election ballot errors establishes immediate jurisdiction in the Minnesota Supreme Court. An appeal from the State Supreme Court goes to the U.S. Supreme Court. Accordingly, if the Minnesota Supreme Court rejects the Fourteenth Amendment case against President Trump, the matter could land on the U.S. Supreme Court docket by the end of the year. Alternatively, if the State Supreme Court agrees with petitioners that Trump is covered by the terms of the Fourteenth Amendment, the case would probably continue in the Minnesota Court to a second phase, determining whether President Trump in fact engaged in insurrection or rebellion against the Constitution. Discovery and subsequent arguments would focus on his actions to overturn the 2020 election result and obstruct the constitutional transfer of power. The litigation would also focus on his actions or inactions related to the January 6, 2021 attack on the Capitol. The Minnesota Court's decision would almost certainly be appealed to the U.S. Supreme Court. Given the importance of the case, the Supreme Court would likely take the appeal and decide it within weeks. Social and political turbulence could increase across the nation if matters reach this point by year-end or early next year. We note the possibility that a U.S. Supreme Court review of this matter might proceed with eight Justices instead of the full nine members of the Court. Justice Clarence Thomas may be recused from this case. Similar Fourteenth Amendment disqualification cases have been filed in Colorado and Michigan and more could be filed in other states. The Issues: At this phase of the proceedings, the Minnesota Supreme Court will consider the following:
Again, defining "insurrection" under the Fourteenth Amendment and determining whether Trump's conduct meets that definition are the contentious issues ultimately at the heart of the case. Trump's opponents contend he attempted to derail the constitutionally mandated process for the transition of power. President Trump's supporters argue he was attempting to protect election integrity in defense of the Constitution. The Fourteenth Amendment of the Constitution was ratified in 1868, shortly after the Civil War. Its insurrection provisions reflected concerns that former confederate officials could join the federal government and undermine the implementation of policies the Confederacy opposed. Some academics have questioned its ongoing authority, especially after Congress -- by supermajorities in the House and Senate -- granted mass amnesty to more than 150,000 confederate troops and officials in 1872, removing their taint of insurrection. Recently, however, a federal appeals court, in a case involving former North Carolina Congressman Madison Cawthorn, affirmed the continued viability of the Fourteenth Amendment's insurrection provision and ruled that the relief granted confederate officials under the Amnesty Act of 1872 applied only retroactively without foreclosing future enforcement of the insurrection provision after 1872. President Trump's conduct and whether it constitutes "insurrection" will not be argued before the Minnesota Supreme Court on November 2 but the insurrection question will become the central issue if the Minnesota Court makes the threshold determination that Trump, as president after taking the oath of office, became an officer of the United States subject to the insurrection restrictions of the Fourteenth Amendment. The Threat to President Trump: The insurrection provision of the Fourteenth Amendment has been mentioned as an abstract risk to Trump's candidacy, but it has simmered on the political backburner as several Republican rivals struggle for relevance against Trump's large double-digit lead in various polls. Minnesota is likely the first state that will tangibly raise the insurrection disqualification risk but others could soon follow. Academic legal opinions are divided, but some very prominent legal scholars and professionals -- Republicans and Democrats -- believe Trump is indeed disqualified from the Presidency under the Fourteenth Amendment. If judicial rulings disqualify Trump from seeking another term, the Republican race could open up and even entice entry from additional candidates despite the passage of filing deadlines in some states (like Nevada). It is also possible that the emergence of a meaningful legal risk to Trump's candidacy could impact his poll numbers as voters weigh the risk of supporting a candidate who could be deemed ineligible to serve. The political fallout of a Supreme Court case raising the insurrection risk to Trump's candidacy is difficult to predict, but the legal battle could soon be ready for prime time. The most significant political courtroom drama since Bush v. Gore is about to grab the spotlight. |
